<h4><em>Under Review</em></h4>
<p>Wildlife is largely managed by <a href="http://www.fws.gov/offices/statelinks.html&quot; target="_blank">states</a>, which have <a href="#" title="See Endangered Species Deskbook, pp 2-5, (eli.org/eli-press-books/endangered-species-deskbook,-second-edition) for a discussion of the evolution of wildlife management law over the centuries.">primary responsibility</a><a href="#_msocom_1"> </a>for <a href="http://en.wikipedia.org/wiki/Wildlife_management&quot; target="_blank">managing</a> hunting, fishing, and the health of their state’s wildlife, including managing <a href="#invasive-species">invasive species</a>. The federal government plays a significant role by regulating and protecting threatened and endangered species through the <a href="#esa">Endangered Species Act</a><a href="#_msocom_3"> </a>(ESA), the Marine Mammal Protection Act, and the <a href="#lacey-act">Lacey Act</a><a href="#_msocom_4"> </a>. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on Biodiversity (CBD) are the main <a href="#international">international treaties</a> that provide protection for endangered species.</p>
<p>For a discussion of state protection of biodiversity, see Susan George, <a href="http://elr.info/news-analysis/37/10631/state-states-overview-state-biod… of the States: An Overview of State Biodiversity Programs</a>. States use wildlife action plans to guide their management efforts. Several ELI research reports discuss these <a href="http://www.eli.org/research-report/state-wildlife-action-plans-and-util…; and efforts to <a href="http://www.eli.org/research-report/next-generation-mitigation-linking-c… impacts</a> of development on wildlife. For a 2007 workshop and various materials on integrating state wildlife plans and wetlands protection, see <a href="http://www.eli.org/land-biodiversity/workshop-explore-opportunities-int… page</a>.</p>
<p>For a thorough discussion of the federal endangered species act, see Lawrence Liebesman, <a href="http://www.eli.org/eli-press-books/endangered-species-deskbook%252C-sec… Species Act Deskbook, 2d ed.</a></p>
<p>ELI has a significant research program devoted to biodiversity preservation—with many <a href="http://www.eli.org/biodiversity-conservation">projects</a&gt; ongoing and an extensive body of <a href="http://www.eli.org/biodiversity-conservation/publications">research reports</a>.</p>
<h4><a name="lacey-act"></a>Lacey Act</h4>
<p>The Lacey Act is the oldest national wildlife protection statute in the United States, enacted in 1900. The Lacey Act <a href="http://www.aphis.usda.gov/plant_health/lacey_act/&quot; target="_blank">regulates</a> and prohibits trade in certain wildlife and plants that have been possessed, transported or sold in violation of state or federal law or treaty, and the falsification of documents or the failure to mark wildlife and plant shipments. The Act was broadened in 2008 to apply to a broader range of plants and plant products, including timber. The Act has a variety of sanctions for violations, including civil or criminal penalties, permit revocation, or forfeiture of wildlife, plants and equipment used in trafficking.</p>
<p>For a general discussion of the Lacey Act, see Law of Environmental Protection, §23.67. &nbsp;For a 2012 seminar on strengths and weaknesses of the Lacey Act, see <a href="http://www.eli.org/events/lacey-act-and-imported-plant-products-recent-… Lacey Act and ‘Imported Plant Products</a> For a 2009 seminar on the 2008 amendments to the Lacey Act, see <a href="http://www.eli.org/events/lacey-act-amendments">Lacey Act Amendment—New Due Diligence Requirements Regarding Source of Wood in Products</a>.</p>
<h4><a name="esa"></a>Endangered Species Act</h4>
<p>The ESA was passed by Congress in 1973 as a response to the emerging awareness of the importance of biodiversity and concern surrounding the alarming rate of decline of many species. It was the intention of Congress to use the ESA to stop and reverse the trend towards <a href="#" title="See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 185 (1978).">species extinction</a>. The <a href="#" title="See 16 U.S.C. § 1531(b), ESA §2(b).">purpose</a> of the statute is threefold: to provide a means to conserve ecosystems of endangered and threatened species, to provide conservation programs for endangered and threatened species, and to take appropriate steps to achieve the purposes of other <a href="#" title="See 16 U.S.C. § 1531(a)(4), citing various migratory bird and fisheries treaties and the Convention on International Trade in Endangered Species of Wild Fauna and Flora, among others.">treaties and conventions</a> identified in the ESA.</p>
<p>For a primer on the ESA, watch and download materials from the ELI Summer School program <a href="http://www.eli.org/events/eli-summer-school-series-2014-nepa-esa-fundam…, ESA and the Fundamentals of Environmental Law</a>.</p>
<p>Many commenters agree the ESA can be improved, but just how to make these improvements remains controversial. For a sampling of the discussion, see Jason Rylander, <a href="http://elr.info/news-analysis/42/10017/recovering-endangered-species-di… Endangered Species: Can the ESA Go Beyond Mere Salvage?</a>; Don Baur, Michael Bean &amp; William Irvin, <a href="http://elr.info/news-analysis/39/10006/recovery-plan-endangered-species… Recovery Plan for the Endangered Species Act</a>; J.B. Ruhl, <a href="http://elr.info/news-analysis/39/10735/climate-change-and-endangered-sp… Change and the Endangered Species Act: Building a Bridge to the No-Analog Future</a>; Katrina Wyman, <a href="http://elr.info/news-analysis/40/10803/rethinking-esa-reflect-human-dom… the ESA to Reflect Human Dominion over Nature</a>; and Jason Totoiu, <a href="http://elr.info/news-analysis/40/10299/building-better-state-endangered… a Better Endangered Species Act: An Integrated Approach Towards Recovery</a>.</p>
<p>The U.S. Department of the Interior is responsible for implementing and carrying out <a href="http://www.fws.gov/endangered/laws-policies/index.html&quot; target="_blank">provisions of the ESA</a> for terrestrial species through the <a href="http://www.fws.gov/endangered&quot; target="_blank">US Fish and Wildlife Service</a>, while the U.S. Department of Commerce implements both <a href="http://www.nmfs.noaa.gov/pr/laws/esa/&quot; target="_blank">the ESA</a> and the <a href="http://www.nmfs.noaa.gov/pr/laws/mmpa/&quot; target="_blank">Marine Mammal Protection Act</a> to oversee marine species and certain species of migrating fish through the <a href="http://www.nmfs.noaa.gov/pr/&quot; target="_blank">National Marine Fisheries Service</a>.</p>
<p>For a discussion of the ESA and MMPA in action, see Koalani Laura Kaulukukui, <a href="http://elr.info/news-analysis/36/10712/brief-and-unexpected-preemption-… Brief and Unexpected Preemption of Hawaii’s Humpback Whale Laws: The Authority of the States to Protect Endangered Marine Mammals under the ESA and MMPA</a>.</p>
<p>The ESA describes how to <a href="#esa-listing">determine and designate</a> a threatened or endangered species, how to designate protected <a href="#esa-critical-habitat">habitat</a><a href="#_msocom_10"> </a>for such species, how to create a <a href="#esa-recovery-plans">recovery plan</a> for the species, how federal agencies must <a href="#esa-federal-agency-consultations">consult</a><a href="#_msocom_12"> </a>with other agencies about listed species, which acts involving listed species, such as <a href="#esa-takings-and-prohibited-actions">takings</a>, are prohibited, and how to <a href="#esa-enforcement">enforce</a> the provisions and penalize violators.</p>
<h5><a name="esa-listing"></a>Listing</h5>
<p>The Fish and Wildlife Service and National Marine Fisheries Service <a href="#" title="See 16 U.S.C. § 1533(c), ESA § 4(c).">publish</a> lists of <a href="http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&amp;sid=186cb0f38a…; target="_blank">wildlife</a> and <a href="http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&amp;sid=186cb0f38a…; target="_blank">plant</a> species determined to be “threatened” or “endangered.” A <a href="#" title="See Endangered Species Deskbook (eli.org/eli-press-books/endangered-species-deskbook,-second-edition), pp. 14-20 for a discussion of what constitutes a species as well as a subspecies and a distinct population segment.">species</a> is considered “<a href="#" title="See 16 U.S.C. § 1532(20), ESA §3(20).">endangered</a>” when it is danger of becoming extinct “throughout all or a significant portion of [its] range,” while “threatened” species are those that will likely become endangered in the foreseeable future. A species may be <a href="http://www.fws.gov/endangered/what-we-do/listing-overview.html&quot; target="_blank">listed</a> due to any of the following <a href="#" title="See 16 U.S.C. § 1533(a)(1)(A-E), ESA § 4(a)(1)(A-E).">factors</a>:</p>
<ol class="list-style-type: upper-alpha;">
<li>The present or threatened destruction, modification, or curtailment of a species’ habitat or range;</li>
<li>Overutilization for commercial, recreational, scientific, or educational purposes;</li>
<li>Disease or predation;</li>
<li>The inadequacy of existing regulatory mechanisms;</li>
<li>Other natural or manmade factors affecting its continued existence.</li>
<p>Only the best scientific data available are <a href="#" title="See 16 U.S.C. § 1533(b)(1)(A), ESA § 4(b)(1)(A).">considered</a>; potential economic impact may not be considered. The services are supposed to <a href="#" title="16 U.S.C. § 1533(c)(2), ESA § 4(c)(2).">review </a>listings every five years to determine whether a species should be removed, upgraded, or downgraded from the lists.</p>
<p>Anyone may <a href="#" title="16 U.S.C. § 1533(b)(3)(A), ESA §4(b)(3)(A).">petition</a><a href="#_msocom_21"> </a>to have a species listed as endangered or threatened. When such a petition is submitted, the agency is required to make a finding and respond within 90 days.</p>
<p>With the recovery of some species, many questions are being asked about delisting endangered species under the ESA. For example, see Edward Fitzgerald, <a href="http://elr.info/news-analysis/41/10840/delisting-wolves-northern-rocky-… Wolves in the Northern Rocky Mountains: Congress Cries Wolf</a> and Federico Cheever, <a href="http://elr.info/news-analysis/31/11302/rhetoric-delisting-species-under… Rhetoric of Delisting Species under the ESA: How to Declare Victory without Winning the War</a>.</p>
<h5><a name="esa-critical-habitat"></a>Critical habitat</h5>
<p>Once a species is listed as threatened or endangered, the agencies <a href="#" title="16 U.S.C. §1533(a)(3), ESA § 4(a)(3).">designate</a> an area of critical habitat. Critical habitat is <a href="#" title="16 U.S.C. § 1532(5)(A)(i), ESA § 3(5)(A)(i).">defined</a><a href="#_msocom_23"> </a>as the “specific areas within the geographical areas occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection . . . .” Designation of <a href="http://www.fs.fed.us/r9/wildlife/tes/docs/esa_references/critical_habit… habitat</a> only affects activities that involve a federal permit, license, or funding and are likely to destroy or adversely modify the critical habitat. It does not impact private actions or necessarily restrict further development. Unlike the listing process, agencies must take <a href="#" title="16 U.S.C. § 1533(b)(2), ESA § 4(b)(2).">economic considerations</a> into account when designating <a href="#" title="For a data base of areas designated as critical habitat, see criticalhabitat.fws.gov/crithab/ ">critical habitat</a><a href="#_msocom_25"></a>.</p>
<p>For a discussion of the interplay between development and critical habitat preservation, see the ELI research projects <a href="http://www.eli.org/land-biodiversity/mapping-high-risk-critical-habitat… High-Risk Critical Habitats</a> and <a href="http://www.eli.org/Program_Areas/land_biodiversity_naturally_green_plan… Green Planning Research and Policy Analysis</a>.</p>
<p>As environmental law continues to evolve, trading of habitat is being used to reduce economic burden and find greater efficiency. See, for example, Michael Bean et al., <a href="http://www.eli.org/research-report/design-us-habitat-banking-systems-su… of U.S. Habitat Banking Systems to Support Conservation of Wildlife Habitat and At-Risk Species</a> Jonathan Remy Nash, <a href="http://elr.info/news-analysis/38/10539/trading-species-new-direction-ha… Species: A New Direction for Habitat Trading Programs</a>, with responses by <a href="http://elr.info/news-analysis/38/10550/comment-two-trading-species-new-… Albrecht</a> and <a href="http://elr.info/news-analysis/38/10548/comment-one-trading-species-new-… Bean</a>.</p>
<h5><a name="esa-recovery-plans"></a>Recovery plans</h5>
<p>Recovery plans must be <a href="#" title="16 U.S.C. § 1533(f)(1), ESA § 4(f)(1).">adopted</a><a href="#_msocom_26"> </a>and implemented for all listed species, unless there is a finding that a plan will not benefit the species. <a href="#" title="For lists of current recovery plans, see fws.gov/endangered/species/recovery-plans.html and nmfs.noaa.gov/pr/recovery/plans.htm.">Recovery plans</a> are drafted by teams comprised of citizens, government representatives, and members of the scientific and academic community and may apply to more than one species. The recovery plans <a href="#" title="16 U.S.C. § 1533(f)(1)(B)(i-iii), ESA § 4(f)(1)(B(i-iii).">should</a>:</p>
<li>Describe any site-specific management actions necessary to conserve and ensure survival of the species;</li>
<li>Identify objective, measureable criteria that should result in the delisting of the species; and</li>
<li>Set time and cost estimates for the carrying out of plan measures and to achieve intermediate steps toward the goal of <a href="#" title="For a discussion of recovery steps, see fws.gov/endangered/what-we-do/recovery-overview.html and nmfs.noaa.gov/pr/recovery/.">recovery</a>.</li>
<p>These criteria act as guidelines, not specific requirements, and agencies have significant freedom in determining if and when recovery plans are created. The plans should take economic and social impacts into account. <a href="#" title="For a discussion of recovery plans, see Endangered Species Deskbook, pp. 35-38.">Recovery plans</a> do not have the force of law, and courts generally decline to enforce the plans.</p>
<h5><a name="esa-federal-agency-consultations"></a>Federal agency consultations</h5>
<p>Federal agencies must <a href="#" title="16 U.S.C. § 1536(a)(2), ESA § 7(a)(2).">protect</a><a href="#_msocom_31"> </a>and conserve listed species so that federal agency action “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction on adverse modification of habitat of such species.”</p>
<p>Before engaging in any activity that may have direct or indirect effects on listed species or critical habitat, federal agencies must <a href="#" title="16 U.S.C. § 1536(a)(2), ESA § 7(a)(2).">consult</a><a href="#_msocom_32"> </a>with the NMFS or FWS to evaluate the potential impact of the proposed action. This is commonly referred to as the “<a href="#" title="For a discussion of the consultation process, see Endangered Species Deskbook pp. 39-62 and nmfs.noaa.gov/pr/consultation/ and fws.gov/endangered/what-we-do/consultations-overview.html.">consultation process</a>” and includes any action that is “<a href="#" title="50 C.F.R. § 402.02 (1990).">authorized</a>, funded, or carried out, in whole or in part, by Federal agencies.”</p>
<p>For a discussion of interagency consultation procedures, see Cynthia Drew, <a href="http://elr.info/news-analysis/37/10483/beyond-delegated-authority-count… Delegated Authority: The Counterpart Endangered Species Act Consultation</a>.</p>
<h5><a name="esa-takings-and-prohibited-actions"></a>Takings and prohibited actions</h5>
<p>It is <a href="#" title="16 U.S.C. § 1538, ESA § 9.">illegal</a><a href="#_msocom_35"> </a>to “take” endangered species and <a href="#" title="For a discussion of the application of ESA prohibitions to threatened species, see Endangered Species Deskbook, p. 64.">certain</a> threatened species. “Take” is <a href="#" title="16 U.S.C. § 1538(a)(1)(B), ESA § 9(a)(1)(B).">defined</a> as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct.” Almost anything that can have a negative impact on a species, in addition to actions or omissions that result in the injury or death of even a single member of a listed species, constitutes a <a href="#" title="For a general discussion of takings and prohibited acts under the ESA, see Endangered Species Deskbook, pp. 63-72.">takings</a> under the ESA. In addition, for <a href="#" title="For plants, the prohibited conduct involves: (1) Import or export of endangered plants; (2) Removal and possession of such species, or maliciously damaging or destroying such species in areas under Federal jurisdiction; (3) Removing, cutting, digging up, damaging or destroying such species in any other area in knowing violation of any state law; (4) Delivering, receiving, carrying, or transporting any such species in interstate commerce and in the course of a commercial activity; and (5) Violating any regulation issued under section 4 of the ESA for any threatened or endangered plant. 16 U.S.C. § 1538(a)(2), ESA § 9(a)(2).">wildlife</a> it is <a href="#" title="16 U.S.C. § 1538(a)(1), ESA § 9(a)(1).">illegal</a><a href="#_msocom_40"> </a>to:</p>
<li>Import or export of an endangered species;</li>
<li>Possess, sell, carry, deliver, transport, or ship any endangered species unlawfully “taken” in the course of commercial activity;</li>
<li>Engage in any activity involving interstate or foreign commerce in endangered species; and</li>
<li>Violate any regulation pertaining to endangered or threatened species.</li>
<p>Congress has included certain limited <a href="#" title="One such exception for the federal government itself is that the government may transplant species for the purpose of establishing experimental populations to further conservation efforts. 50 C.F.R 17.81(b)(1)(4). Transplantation of listed species must be within that species’ historic range, and must be essential to the continued existence of the species.">exceptions</a> to the prohibition against takings. Landowners may apply for an <a href="#" title="For a discussion of incidental take permits and habitat conservation plans in general, see Endangered Species Deskbook, pp. 73-81, fws.gov/endangered/permits/index.html, and nmfs.noaa.gov/pr/permits/incidental.htm.">Incidental Take Permit</a><a href="#_msocom_42"> </a>under §10, which <a href="#" title="16 U.S.C. § 1539(a)(1)(B), ESA § 10(a)(1)(B).">allows</a> them to take a listed species “if such a taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” In order to obtain an Incidental Take Permit, a landowner must first submit a Habitat Conservation Plan that <a href="#" title="16 U.S.C. § 1539(a)(2)(A)(i-iv), ESA §10(a)(2)(A)(i-iv).">specifies</a> the impacts of the take, the steps to be taken to minimize and mitigate such impacts, the funding available, and the alternatives, including reasoning for why alternative actions are not being pursued.</p>
<p>For a discussion of incidental take permits in action, see Patrick Duggan, <a href="http://elr.info/news-analysis/41/10628/incidental-extinction-how-endang… Extinction: How the ESA’s Incidental Take Permits Fail to Account for Population Loss</a>.</p>
<p>A <a href="#" title="For an in-depth discussion of these agreements, see Endangered Species Deskbook, p. 79, and fws.gov/endangered/landowners/safe-harbor-agreements.html.">Safe Harbor Agreement</a> also provides a route around the prohibition on taking. Under such an agreement, a landowner <a href="#" title="16 U.S.C. § 1539(a)(1)A), ESA § 10(a)(1)(A).">engages</a> in activities that may restore, enhance, or maintain habitat for a listed species on private land. In exchange, the landowner receives guarantees that future land restrictions will be limited, and some incidental take may be allowed. Similar agreements known as <a href="#" title="For more information about these agreements, see Endangered Species Deskbook, pp. 80-81, and fws.gov/endangered/what-we-do/cca.html.">Candidate Conservation Agreements</a> and Candidate Conservation Agreements with Assurances are <a href="#" title="See 64 Fed. Reg. 32726, 32733 (June 17, 1999).">available</a> for species that are candidates for listing, but as of yet have not been formally listed.</p>
<h5><a name="esa-enforcement"></a>Enforcement and citizen suits</h5>
<p><a href="#" title="Enforcement and citizens suits are discussed generally in Endangered Species Deskbook, pp. 83-89.">Penalties</a> for violation of the ESA <a href="#" title="16 U.S.C. § 1540, ESA § 11.">include</a><a href="#_msocom_50"> </a>civil and criminal penalties, injunctions, and loss of permits, licensees and federal leases. A violation affecting an endangered species is more severe (up to $25,000 fine per occurrence and potential criminal penalties of $100,000 and a year in jail) than those affecting a threatened species (up to $12,000 fine per occurrence and potential criminal penalties of $25,000 and six months in jail). Other violations may result in $500 fines, as well as seizure of guns, traps, nets, and other equipment, including vessels, vehicles or aircraft used to air in the violation.</p>
<p>The <a href="#" title="16 U.S.C. § 1540(a)(1) &amp; (b)(1), ESA § 11(a)(1) &amp; (b)(1).">intent</a><a href="#_msocom_51"> </a>requirement for criminal violation of the ESA is that one “knowingly committed” an act. It is not necessary to show that an individual who killed an animal had knowledge that the species was endangered; all that is required is that the individual knew he or she was killing an animal. However, there is an exception to this rule when the individual can demonstrate that he or she <a href="#" title="16 U.S.C. § 1540(a)(3), ESA § 11(a)(3).">acted</a><a href="#_msocom_52"> </a>“based on the good faith belief that he was acting to protect himself, or a member of his or her family, or another individual from bodily harm from any endangered or threatened species.”</p>
<p>For a discussion of enforcement of species protection, watch and download materials from the ELI seminar, <a href="http://www.eli.org/events/ocean-and-coastal-law-enforcement-enforcing-p… and Coastal Law Enforcement: Enforcing Protected Species Laws in the Marine Environment</a>.</p>
<p>Citizens may bring <a href="http://www.eli.org/keywords/governance#citizen-suits">suit</a><a href="#_msocom_53"> </a>to enforce the ESA. The citizen suit provision gives private citizens the power to act as private attorneys general to sue in court for violations of the ESA. Citizens are <a href="#" title="16 U.S.C. § 1540(g)(1)(a-c), ESA § 11(g)(1)(a-c).">authorized</a><a href="#_msocom_54"> </a>to commence a civil suit:</p>
<li>To enjoin any person, including the United State and any other governmental instrumentality or agency (to the extent permitted by the eleventh Amendment to the Constitution), who is alleged to be in violation of any provision of [the ESA];</li>
<li>To compel the Secretary to apply [section 4(d) or 9 prohibitions] with respect to the taking of any resident endangered species or threatened species within any State; or</li>
<li>Against the Secretary where there is alleged a failure of the Secretary to perform any act of duty under [section 4 of the ESA] which is not discretionary with the Secretary.</li>
<p>While the citizen suit provision is interpreted broadly, an individual or group wishing to bring a suit must still satisfy the <a href="http://www.eli.org/keywords/governance#standing">standing requirement</a><a href="#_msocom_55"></a>.</p>
<p>For a discussion of how endangered species protection interacts with renewable energy facility siting, listen to and download materials from the ELI seminars <a href="http://www.eli.org/events/wind-energy-wildlife-and-endangered-species">… Energy, Wildlife, and Endangered Species</a> and <a href="http://www.eli.org/events/usfws-wind-energy-guidelines-implementation-w… Wind Energy Guidelines Workshop</a>.</p>
<h4><a name="invasive-species"></a>Invasive Species</h4>
<p>While endangered and threatened species garner most of the attention when discussing wildlife management, <a href="#" title="‘‘Invasive species’’ means an alien species whose introduction does or is likely to cause economic or environmental harm or harm to human health. ‘‘Alien species’’ means, with respect to a particular ecosystem, any species, including its seeds, eggs, spores, or other biological material capable of propagating that species, that is not native to that ecosystem. From Executive Order 13112.">invasive species</a> is a critical area as well. Invasive species pose a significant ecological, economic, and social <a href="#" title="See generally the National Invasive Species Information Center (invasivespeciesinfo.gov/index.shtml)and the U.S. Fish and Wildlife Service (fws.gov/invasives/) webpages.">threat</a><a href="#_msocom_57"> </a>to the United States. Stopping their introduction, eliminating their spread, and mitigating their impact are the thrust of <a href="http://www.invasivespeciesinfo.gov/laws/main.shtml#.UCGGX6DhfMx&quot; target="_blank">current laws and policies</a>, which remain somewhat underdeveloped and underfunded. As with wildlife management, most responsibility rests on the states, with the federal government playing mostly a <a href="http://www.invasivespecies.gov/&quot; target="_blank">coordinating role</a>.</p>
<p>ELI has an extensive <a href="http://www.eli.org/invasive-species">Invasive Species program</a> and has published many <a href="http://www.eli.org/invasive-species/publications">research reports</a> on the topic. ELI’s seminal report, <a href="http://www.eli.org/research-report/halting-invasion-state-tools-invasiv… the Invasion: State Tools for Invasive Species Management</a>, can be downloaded for free. Marc Miller’s <a href="http://www.eli.org/eli-press-books/harmful-invasive-species%253A-legal-… Invasive Species: Legal Responses</a>, outlines international responses to controlling this threat.</p>
<p>For a discussion of the links between climate change and invasives, download materials from the 2008 ELI Seminar <a href="http://www.eli.org/land-biodiversity/invasive-species-and-climate-chang… Species and Climate Change: Risks and Responses</a>.</p>
<h4><a name="international"></a>International</h4>
<p>The <a href="http://www.cites.org&quot; target="_blank">Convention on International Trade in Endangered Species of Wild Fauna and Flora</a> (CITES) is an <a href="http://www.cites.org/eng/disc/text.php&quot; target="_blank">international agreement</a> signed by more than 175 parties with the mission of protecting more than 30,000 threatened and endangered species from exploitation caused by unregulated international wildlife trade. CITES requires member countries to obtain permits for trading threatened or endangered species, with the threat of sanctions for failure to do so. The U.S. was the first signatory of CITES, in 1974. In the United States, CITES is implemented by the <a href="http://www.fws.gov/international/DMA_DSA/CITES/CITES_home.html&quot; target="_blank">Fish and Wildlife Service</a>, the <a href="http://www.aphis.usda.gov/import_export/plants/plant_imports/cites_enda…; target="_blank">Animal and Plant Health Inspection Service</a> , and <a href="http://www.nmfs.noaa.gov/ia/intlagree/cites.htm&quot; target="_blank">NOAA Fisheries</a>.&nbsp;</p>
<p>For a discussion of CITES, see Laura Kosloff, <a href="http://elr.info/news-analysis/17/10222/convention-international-trade-e… No Carrot, But Where’s the Stick?</a></p>
<p>An important aspect of the Convention on Biological Diversity is giving host countries and indigenous peoples rights to the <a href="http://www.eli.org/sites/default/files/docs/africa/bellagio_report.pdf&…; target="_blank">genetic resources</a> found and exploited in their countries and traditional homelands. A 2009 ELI seminar discussed these issues, and materials from the seminar are available for download <a href="http://www.eli.org/Seminars/past_event.cfm?eventid=457">here</a&gt;. The ELI Report <a href="http://www.eli.org/research-report/african-perspectives-genetic-resourc… Perspectives on Genetic Resources: A Handbook on Laws, Policies, and Institutions</a> can be downloaded for free.</p>
<p>The <a href="http://www.cbd.int/&quot; target="_blank">Convention on Biological Diversity</a> seeks to protect the diversity of both wildlife and other living species around the globe. Although the United States signed the treaty in 1994, it has not ratified it. As a result, it is not in force in the United States.</p>

“Crazy River”: A Journey Into Nature and the African Soul
Oliver Houck - Tulane University
Tulane University
Current Issue

Richard Grant’s Crazy River is a story of wild adventure in one of the most chaotic, conflict-ridden, and environmentally rich regions of the world, weighted by a history far longer and more brutal than ours and a culture that most westerners can only pretend to understand. Subtitled Exploration and Folly in East Africa, the book’s journey undertakes to understand both burdens.

The perils of this trip were foreshadowed a century before by the brilliant and cursed English explorer Richard Burton, who went blind and nearly died several times while searching for the source of the Nile. In Burton’s account, the natural environment and wildlife species the size of elephants, gorillas, and rhinos were already beginning to dwindle. In Grant’s book they have, even in their heartlands, all but disappeared. Under the circumstances of East Africa today it is a wonder that any wildlife remains.

The Crazy River book jacket reads, “No one travels quite like Richard Grant and, really, no one should.” The text goes on to prove it, and so much else, along the way. The Malagarasi River, which was variously said to run for 250 and 310 miles, had never been floated from start to finish by any known human being, and several had tried before Grant did.

There were many reasons to fail, including a rogue’s gallery of poisonous snakes, an air shed of malaria-carrying mosquitoes, long-needled wasps, and tsetse flies whose noise come sundown “increased to a shrieking metallic whine.” Worst, perhaps, was the risk of an injury en route in stretches so remote that there was no way to get out, and no way for assistance to get in. What was most crazy about this river was Grant himself.

He was not alone in this. Burton had preceded him, with a partner so psychotic that they ended up hating each other for life. So had David Livingston, a missionary who when “found” by Henry Stanley was barely alive. Returning a second time to find the source of the Nile, Livingston became lost again, went south instead of north, and ended up dying of dysentery and malaria. Grant was traveling, inter alia, through a world of myths and heroes.

And yet, he at times found himself in the midst of a splendor so magnificent in wildlife that it took his breath away, and so threatened by a vortex of assaults that they took his hope away too, leaving barely enough room for it to return. A signal problem was poachers, who took two forms. The first were local tribes looking for “bush meat.” It is revealing to learn that the Swahili word for wildlife, nayma, was also the word for meat. A handful of professionals, on the other hand, could completely eliminate targeted game in an entire watershed, and then move to the next. They went well armed, with telescopic rifles, Uzis, grenades, and quick-strike vehicles that could go in at dark and be out before dawn. The meat from one dead hippo was worth a thousand dollars, sold in three-kilo chunks for five dollars apiece. The tusks from a single elephant were worth thousands of dollars when sold by poachers, and resold for fortunes to buyers in Asia.

In this grim scenario, Grant found a single haven, the private game reserve of the Friedkin Foundation that both allowed regulated game hunting but had a multiple-warhead strategy to keep the wildlife at sustainable levels. Coming upon it they were suddenly there on the horizon, all the big ones walking calmly through tall grass and resting under shade trees. Friedkin recruited well-paid rangers from the local tribes, shared game hunting proceeds with tribal leaders, and both invested and assisted in village improvement projects to expand their food base, including domestic animals, fish hatcheries, and nurseries for new trees. Grant felt initially guilty about the sequestration of this wildlife when the tribes around them were desperately hungry for money and meat. On reflection, he concluded, they would only kill all of them and end up just as poor and hungry as before.

Grant’s guide on the Malagarasi, Ryan Shallom, was also a professional guide for big game hunters. He and his father, a lifelong hunter, had the same feelings about both hippos and elephants: “They cry.” Ryan described one that used to come to the open window and listen to the radio. Neither had shot or guided a shooting trip for elephants in decades. And yet the elephants continued to disappear; the radio-listener was killed by a poacher.

Their insight into hippos was also surprisingly sensitive. When Grant asked why they were such a terror on the river, Ryan explained that they were staking out mating territories year around, and anything like a boat was just another rival waiting to be busted out of the way. He also said that when a hippo died, its survivors mourned. They stood around the body grieving, making small sounds, looking as sad as the elephants, and for reasons that predate humans by millennia.

The more fundamental reason for the plummeting wildlife of East Africa, however, lay in another quarter. Poaching took the animals out one by one. Longhorn cattle took them out by the thousands, destroying the landscape on which they depended. The tribal relationship with cattle was unusual, and suicidal. Cattle were not killed for meat except for a special feast day. They were kept alive for their milk and their blood. But above all they were a symbol of wealth and prestige. The more one had, “the more proud, secure, satisfied, and successful he was.” It made no sense to sell them because “what use was money except to buy more cattle?”

Grant met a female chief of a major tribe who had returned from university to find drought on its way and that cattle, goats, and camels were “eating up the sandy, thorny land.” Tribe members had built up their herds during a rainy season now long passed, and she tried to persuade them to at least “slaughter them and jerk the meat.” She got nowhere. “And now,” she continued, “the drought is here, the animals are dying, and all we are living on is food aid.”

The cattle problem was not all locally born. Ryan told the story of the Sukuma people of south Sudan who, having exhausted their own homeland with hundreds of thousands of a particularly aggressive breed of cattle, trekked south for better pasture to the most wildlife-rich area of East Africa, along the Malagarasa River. They spread poison on carcasses they killed to get rid of the predators. They cut down all the trees for charcoal to sell, drying out the landscape even more. They destroyed Kilombero, an internationally protected wetland site. They hunted out other grazers for meat, and bribed local leaders to let them stay. The government, intimidated, stood by. Grant’s guide teared up telling the tale. Ryan and his wife had intended to retire to this valley for its wildlife and sheer beauty. Now this too was gone.

Perhaps Grant’s favorite wildlife encounter in East Africa was Gustave, the King of the Alligators, who had lived along Lake Tanganyika for half a century, eating large fish, other gators, and human beings in prodigious numbers. He was the special project of a French expatriate named Patrice, who had followed Gustave everywhere, studied the reports of attacks, interviewing witnesses and lucky survivors who had lost only arms and legs.

“First time I see him I shoot him,” he told Grant, “then I shoot him again but they just bounce off. Then I put my rifle down. I cannot kill him. I had to save him instead. I called him Gustave, it’s a good name for him, no?” Gustave had an unusually large territory, extending from the lake upstream some 20 miles to a national park, from which he returned to find a mate. During his most extravagant rampage he killed and ate 17 people in 40 days. And then came the explanation:

“You must understand that many bodies were thrown in the river and the lake following the wars in Burundi. Every day when I was following him I would see dead bodies in the water. Four, five, some ten every day, with hands tied behind their back. This is how he got the taste for eating people.”

Patrice had just opened the door to the most horrific civil war in African history, perhaps even in human history. It was between two native peoples, the Hutus and the Tutsi, who had lived in relative harmony according to their own histories until the Belgians, who controlled the region, divided them into Burundi and Rwanda. Then, for ease of management, they set them against each other.

What ensued were two horrific massacres, two decades apart. The first, in the mid-1970s, featured an unimaginable bloodletting that spared no one and was marked by torture, burning alive, and the crushed heads of babies, and was eventually won by the Hutus. Twenty years later came an equally prolonged and horrific massacre of revenge, led and won by the Tutsis.

Their commander, General Paul Kagame, went on to rule Rwanda with western-style economics and an iron fist. Kagame, with whom Grant obtained a lengthy interview, gave the author his final dilemma. Here was Burundi, emerging from the same horror show, with a fully democratic country that was in continuous chaos. There was Rwanda, now the opposite, clean, hard-working, new buildings sprouting on the horizon, but with a ranking of 184 out of 191 countries in freedom of the press. How Burundi would fare going forward seemed obvious. How Rwanda would fare without its leader remained to be seen.

Grant could not leave Rwanda without a visit to its famed Gorilla Forest, the number-two tourist museum beyond its genocide museum. It was everything he hoped for. Perhaps someone like Kagame could restore it to the landscape more widely, and make it stick. Even if it meant the vigorous suppression of dissent. Left to reflect on it, would this be a good outcome? For the mountain gorilla? For Africa?

Oliver Houck is a professor of law at Tulane University. www.oliverhouck.com.

On the journey up the Crazy River.

Breaching an Interagency Wall
Elaine Koerner - EPA and Border Patrol, retired
EPA and Border Patrol, retired
Current Issue
Elaine Koerner

When I entered the Border Patrol headquarters lobby more than ten years ago as a new employee, U.S.-Mexico border security measures already were ramping up. Several hundred miles of pedestrian and vehicle fencing had recently been put into place, and more barriers were on the drawing board.

Two years earlier, President George W. Bush had signed the Secure Fence Act of 2006. It called for 670 miles of border fences and access roads to be constructed along the U.S.-Mexico frontier. In the news prominently today, the act was an amendment to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

In addition to the new barriers, Border Patrol staffing levels at that time were climbing steadily — up from approximately 12,350 in 2006 to nearly 17,500 when I joined two years later. And of that total, more than 15,000 agents and staff were deployed along the southwestern border.

Most people initially are surprised when I tell them that the Border Patrol hired me for my southwest border region environmental policy expertise. In fact, my primary qualification for the job was my seven years of managing the Good Neighbor Environmental Board, a presidential advisory committee charged with providing recommendations on environmental practices along the boundary with Mexico. GNEB was, and still is, housed at EPA.

People’s initial surprise quickly becomes a nod of understanding as I explain the need for environmental expertise within the Border Patrol. Our nearly 2,000-mile southwestern frontier includes millions of acres of public land in the form of national parks, national wildlife refuges, wilderness areas, and other federal holdings. And living on that land are more than 50 endangered or vulnerable species as well as valuable cultural resources, protected by a body of law that is the operational touchstone for officials from the Forest Service, Fish and Wildlife Service, and sister agencies within the Department of the Interior.

Meanwhile, on those same pieces of federal land, Border Patrol agents diligently carry out their own, very different mission to search for, apprehend, and rescue illegal crossers. They patrol on foot, by horseback, and straddling four-wheel all-terrain vehicles. Needless to say, the potential for seeing environmental protection and border security as an either-or choice is enormous.

The job I was hired for was co-director of the Border Patrol’s national environmental policy training program. Fortunately for me, my partner was an affable agent with years of field experience who was willing to welcome a female civilian tree-hugger into the ranks. Not long after beginning our work together, he assured me that he “had my back,” welcome words to a stranger in a very strange cultural land. At the same time, he also reminded me in no uncertain terms that while our particular jobs were about environmental compliance and even environmental stewardship when possible, our number one mission was border security. Period.

Together, the two of us managed a nationwide environmental training program set up to achieve two goals. The first, to ensure that every agent, whether based on the southwestern, northern, or coastal border, understands what complying with environmental laws on public lands entails and draws upon that knowledge if needed in their patrol work. The training also covers preservation of cultural resources, especially relevant given that more than a dozen tribes hold land along the southwestern border.

To address this first goal, the Border Patrol has created a Public Lands Liaison Agent program. One agent in each of the agency’s 20 border regions is designated as the PLLA. That agent is responsible for training all of the other agents in that sector’s stations. And on an annual basis, all PLLAs nationwide come in to headquarters in Washington for a multi-day training session.

Each PLLA learns about overall compliance with environmental law but also learns about site-specific environmental conditions on the federal lands that lie in his or her (mostly his) sector. Specifics in one location may include the presence of an endangered or threatened species and, for example, if that species is a bird, details such as the time frame for its nesting season. In another location, training could involve learning about a particular landscape feature or site that holds cultural significance or is held sacred by a tribe.

The second goal of the training program is to help build and maintain a cooperative working relationship between agents who patrol the border’s public lands and the Interior and Forest Service officials who monitor their every footstep. Meeting that second goal remains much less straightforward than the first. But here again, an invaluable tool and vehicle for its implementation had been created before my arrival. A memorandum of understanding had quickly become the reference for how to do business together.

“Cooperative National Security and Counterterrorism Efforts on Federal Lands along the United States’ Borders” was signed in 2006 by the secretaries of homeland security, interior, and agriculture, on behalf of their national constituent bureaus, including Customs and Border Protection and the Border Patrol.

This 10-page document, undoubtedly painstakingly word-smithed by officials from all three departments, affirms the parties’ mutual commitment to three actions. These are preventing illegal entry into the United States, protecting federal land and natural and cultural resources, and where possible preventing adverse impacts associated with illegal entry by what the document calls “cross-border violators,” known colloquially as CBVs. It includes guidance for law enforcement operations such as use of roads, tactical infrastructure installation, and minimization or prevention of impacts on cultural and natural resources.

The MOU also calls for coordinating and sharing information in several key areas. They include threat assessments and other risks, plans for infrastructure and technology improvements on federal lands, and operational and law enforcement staffing changes. It states that the parties will develop and utilize an efficient communication protocol that respects each entity’s chain of command. Finally, it commits participating parties to making robust efforts to resolve conflicts at, and delegate resolution authority to, the lowest field operational level possible.

One of the document’s most controversial provisions is the section describing circumstances under which agents have the authority to pursue suspected border crossers using motorized vehicles when that pursuit takes them off existing roads and trails into areas designated as wilderness.

The language decided upon to describe allowable circumstances reads as follows: “When, in their professional judgment based on articulated facts, there is a specific exigency/emergency involving human life, health, safety of persons within the area, or posing a threat to national security, and they conclude that such motorized off-road pursuit is reasonably expected to result in the apprehension of the suspected CBVs.” I can only imagine the hours of inter-departmental angst and language massage that preceded the final version of that provision, in full knowledge that terms such as “exigency/emergency” would remain ripe for interpretation.

To aid with implementing the terms of the MOU, Border Patrol sectors have created vehicles called Borderland Management Task Forces. These BMTFs meet face-to-face on a regular basis. Depending upon the public lands located in each sector, attendees might include officials from the Border Patrol, the Park Service, the Fish and Wildlife Service, the Forest Service, and occasionally state land agencies, local government officials, and members of tribes. Each BMTF is chaired by the PLLA from that sector along with a counterpart land manager.

I attended a number of BMTF meetings; they provided me an excellent opportunity to witness how to resolve conflicts at a local level as well as identifying win-win opportunities.

For example, in one region the agenda might include cross-agency deliberations on where the staging area should be for constructing a new section of barrier that was both convenient and also avoided an especially fragile piece of habitat. At another meeting, a land manager might report a recent sighting of an endangered species with an exotic name such as the lesser long-nosed bat. At a third meeting, a tribal member from the Tohono O’odham Nation — whose territory extends miles into Mexico — might describe the latest efforts to remove hundreds of abandoned vehicles from its land. And at a fourth, an agent might announce a new initiative to remove a local invasive species such as salt cedar that, at the same time, would provide a clearer line of sight for agents patrolling that area.

Nowadays, like most everyone else, I continue to closely follow congressional deliberations on what in shorthand is described as “the border wall.” The latest available statistics set the number of Border Patrol agents working on the southwestern border at 16,605. And an Office of the Inspector General report published in 2017 states that 654 miles of fencing out of the 670 called for under the Secure Fence Act are in place.

Although I hold my own views on the proposed border wall’s merits or lack thereof, I can unequivocally say that my four plus years of working for the Border Patrol gives me absolutely no professional insider leg up on the subject. True, I traveled extensively to Border Patrol offices along the southwestern frontier as well as occasionally to the northern and coastal borders. But the focus for my travels was environment, not security. At no point was I directly involved in what I think of as the sharp end of the immediate deterrent business, nor was I privy to any internal strategy discussions of that nature.

The closest I got to experiencing an apprehension was during what’s called a ride-along I took with an agent alongside a steel section of barrier that divides portions of Arizona from Sonora. The agent and I had made our way along the dusty gravel road for miles and then continued on into a very remote area with only a section of short vehicle barrier to our left. Suddenly, two individuals appeared from behind a creosote bush just ahead and to our right. They dashed across the road in front of us and, in what seemed like seconds, had scrambled up and over the fence, disappearing south into Mexico.

Perhaps they had been dropping off drugs, or perhaps they were ferrying food provisions for a group in Mexico being led toward the border by a coyote, a human smuggler. I will never know. What I do know is that had a certain female tree-hugger from headquarters not been in the vehicle and potentially at risk, a different outcome may have occurred.

What I can offer up is my view on how best to resolve any mission conflict, to the benefit of both environmental stewardship and border security. From my perspective, much of it comes down to putting a name and a face to those individuals whose jobs are perceived as an impediment to getting one’s own job done.

Which means sitting down across the meeting table or over lunch to listen and learn about the how and the why of the other person’s job, armed with solid knowledge of the how and why of your own job. Maybe if you’re lucky you even talk about families or hobbies. Provided one’s own mission is not seen as being sacrificed, creative solutions often can emerge. As to whether the way forward is reached via respectful but cut-throat horse trading or simply goodwill is a moot point at the end of the day.

My stint with the Border Patrol ended in 2013, but my old colleagues tell me the MOU, the PLLA program, and the BMTF task forces are alive and well. It remains to be seen if these interagency groups revert back to the days of agendas filled with updates on the latest barrier construction, as was the case back when I attended their meetings, or whether conversations about conservation will instead mean the wall between environmental protection and border protection has at last been successfully breached. TEF

TESTIMONY ❧ After almost two decades working at EPA headquarters, I walked across the plaza connecting it to the offices of the Border Patrol to begin a new career helping agents recognize environmental impacts as they carry out their mission on the southwestern frontier.

Renewable Practitioners Grapple With Federal Species Protections
Ethan Shenkman - Arnold & Porter
Arnold & Porter
Current Issue
Ethan Shenkman

Interior Secretary Ryan Zinke has announced that offshore wind will play a “big role” in the “America-First Offshore Energy Strategy.” With an estimated over 2,000 gigawatts of wind resource capacity in U.S. waters, offshore wind facilities could be critical in securing energy independence and reducing carbon emissions. As renewable energy practitioners are keenly aware, however, the siting and permitting of wind facilities often must run a gauntlet of environmental reviews and species protections laws. While these laws serve extremely important functions in protecting biodiversity, they need to be reconciled with the new imperative to expand our renewable energy infrastructure.

Central for wind energy facilities is risks to birds and bats. Though these risks are negligible compared to other sources of mortality (such as collisions with buildings), the wind industry has long taken a role in species conservation, collaborating on studies, siting guidelines, and voluntary protocols, and developing innovative technologies. However, some deaths are unavoidable.

The Migratory Bird Treaty Act is celebrating its centennial, yet its meaning remains far from settled. Unless authorized by regulation, the MBTA makes it unlawful to “take” migratory birds. Courts have long disagreed about what take entails. The Fifth, Eighth, and Ninth Circuits have held that the MBTA prohibits only intentional take such as hunting. But the Second and Tenth Circuits, and importantly the Fish and Wildlife Service, have previously determined that the MBTA also prohibits incidental take such as typically occurs with a wind facility.

Then the Justice Department brought a high-profile criminal enforcement action under the MBTA against a wind energy facility in 2013. The FWS began regulations to authorize incidental take two years later. And the Interior Department solicitor concluded that the MBTA prohibits direct incidental take three days before the Obama administration ended.

The legal pendulum soon swung the other way. The Trump administration’s DOI solicitor concluded that the MBTA does not prohibit incidental take. The FWS further cemented this position in guidance issued in April. The story is far from over, however, as six environmental groups filed suit challenging the solicitor’s opinion in the Second Circuit, which has long held that MBTA prohibits incidental take.

The MBTA is not the only law impacting wind developers. The FWS has interpreted the Bald and Golden Eagle Act to prohibit incidental (or nonpurposeful) take, and issued revised regulations authorizing incidental take in 2016. Moreover, where federal agency action is required for a wind facility, practitioners must grapple with a host of measures. Executive Order 13186 directs federal agencies to avoid and minimize impacts to migratory birds, including those resulting in “unintentional take.” The National Environmental Policy Act has its well-known restrictions on federal actions, including permitting. And the Endangered Species Act prohibits federal agencies from jeopardizing the continued existence of threatened and endangered species or adversely modifying critical habitat. Even where federal agency action is not required, wind developers may need to obtain permits for incidental take of threatened and endangered species under the ESA’s Section 10.

Navigating these requirements can extend development timelines, but FWS has already begun experimenting to find efficiencies in the ESA and NEPA processes. For example, FWS recently issued a notice of intent to prepare a programmatic environmental impact statement related to permits authorizing incidental take of two endangered migratory birds and an endangered bat from four wind energy projects in Hawaii. This approach to expediting review could ultimately be replicated for both land-based and offshore wind facilities.

Practitioners must be attuned to developments at the state and local as well. As Mike Speerschneider, senior director of the American Wind Energy Association, acknowledges, “There is a lot of growth going on right now in the midwestern states, and the state resource agencies are taking notice.” This is particularly true with respect to impacts to non-federally listed but state-protected bat species. In some cases, state regulators are considering operational protocols like curtailment and increasing cut-in speeds that create additional challenges for wind facilities, with uncertain benefits.

According to Speerschneider, the wind industry “wants to work with the administration and agencies to develop reasonable permitting programs that involve avoidance, minimization, and mitigation measures that are commensurate with the level of impacts that result from wind farms.”

The author thanks summer associate Emily Orler for her contributions to this column.

Renewable practitioners grapple with federal species protections.

Going Against the Flow
Talia Ogliore - Washington University in St. Louis
Washington University in St. Louis
Current Issue
Going Against the Flow

The Missouri River is the longest and, by some accounts, most heavily engineered river in the United States. From its headwaters in the Rocky Mountains in western Montana, it stretches for more than 2,300 miles through a massive system of dams, reservoirs, and levees before emptying into the Mississippi River just north of St. Louis.

Tim Briscoe is a brand new associate attorney in the environmental law practice group of Thompson Coburn LLP, having just received his juris doctor degree from Washington University in St. Louis, a campus not far from the confluence. For him the Missouri River is more than an overbuilt local waterway. It is the scene of a battle with an unlikely set of protagonists: the Army Corps of Engineers, the U.S. Fish and Wildlife Service, and two birds and a fish.

Before he found himself evaluating the Corps’ ambitious management plan for the Missouri River, Briscoe did not know about the interior least tern, the Northern Great Plains piping plover, or the pallid sturgeon. He didn’t know about engineered sandbars and flow rates or what they mean for the animals’ survival. He had never even heard of these species, let alone encountered one in person —though he later was delighted to stumble upon a fine example of the prehistoric-looking sturgeon at the Saint Louis Zoo.

But he had always loved water. Briscoe, 25, played competitive men’s water polo as an undergraduate at the University of Illinois, where his thesis focused on jurisdictional challenges of the Clean Water Act. He swam breaststroke on his high school swim team, and he still swims recreationally at Millstone Pool a few times each week. “There’s a connection between my interest in water law and growing up swimming in the water — literally,” Briscoe says today. He grew up in northwestern Illinois near the Fox River, which has its own complicated history of pollution and environmental cleanup.

His early introduction to environmental issues came with swimming and boating in and on the Fox. Briscoe frequently saw oil slicks and dead fish floating along. They made an impression. At Washington University, Briscoe declared his interest in environmental law from the start. During his first summer, he interned at the Great Rivers Environmental Law Center in St. Louis, and he worked at the EPA Office of Regional Counsel in Chicago during his second summer. In fall 2017, he served as a law clerk at the Environmental Law Institute in Washington, D.C.

Then in spring 2017, Briscoe rolled up his sleeves for the Missouri River, under the auspices of Washington University’s Interdisciplinary Environmental Clinic. The IEC represents nonprofit groups, communities, and individuals who are pursuing legal action to protect the environment and community health but who cannot afford the legal representation and scientific expertise this requires. Working as a student attorney for the IEC, Briscoe represented the Missouri Coalition for the Environment in preparing and delivering a formal comment on the Corps’ Draft Missouri River Recovery Management Plan and Environmental Impact Statement. The draft EIS describes management actions intended to ensure that operations of the Missouri River system will not jeopardize the sturgeon, tern, and plover, three species listed under the Endangered Species Act. It was prepared by the Kansas City and Omaha Districts, in cooperation with FWS.

When the comment was submitted, it was endorsed by seven nonprofit environmental organizations. “The proposal itself was massive, containing thousands of pages of statistics, scientific studies, economic projections, and other analysis designed to support the Corps’ vision,” says Elizabeth Hubertz, lecturer in law, who oversaw Briscoe’s work with the IEC and, subsequently, his pretrial procedure course at the law school.

“Tim’s role was to evaluate the proposal and determine whether it was protective of the environment and met the requirements of the Endangered Species Act,” she said. “This was a daunting challenge, in terms of the size and complexity of the undertaking,” Hubertz says. “One of the first things Tim worked on was convincing the Corps to allow the clinic’s clients more time to prepare a response in light of the project’s sheer immensity. Tim then prepared and gave oral testimony at a hearing held by the Corps, challenging landowners and barge traffickers who hoped to persuade the Corps that ‘two birds and a fish’ were not worth saving.”

“This is a big project, a very expensive one,” Briscoe says. “It’s very important from an environmental perspective. The health of the Missouri River is important, and there’s all kinds of impacts related to flooding, channelization, and shipping.” The Missouri hosts a wide variety of interests and uses today, all of which the Corps says it considered in the river’s recovery program. These uses include fish and wildlife habitat, flood control, hydropower, irrigation, navigation, recreation, and water supply and water quality applications. The Corps also cites other important considerations for the river including tribal interests, cultural resources, and ecosystem services. But a river can only take so much “use.”

Across the Missouri River ecosystem, the Corps acknowledges that 3 million acres of natural river habitat have been altered; 51 of 67 native fish species are now rare, uncommon, or decreasing; reproduction of cottonwoods, historically the dominant floodplain tree, has largely ceased; and aquatic insects, a key link in the food chain, have been reduced by 70 percent. In the formal administrative comment on the draft EIS that he prepared, Briscoe argued that the Corps is using an outdated biological assessment as a snapshot of the health of the species in question. He and Gabby Riek, a 2017 graduate of Washington University’s engineering school, who also worked with the IEC, determined that the science behind the Corps’ plan to build engineered sandbars as habitat was debatable — and that there was reason to suspect that they might never pile up the way the Corps said they would.

“The Corps said that they would release water from dams that would theoretically create sandbar habitat,” Briscoe says. “The sandbar habitat is used by endangered birds during breeding and migration. Riek did some really good research and found out that the science behind these flow releases was actually highly uncertain. And the Corps even acknowledged in some of its prior publications that it was inconclusive — that they did not have conclusions about the effectiveness of this method to create sandbar habitat.” Finally and most importantly, Briscoe says, the Corps presented a loaded set of “alternatives” for mechanical sandbar habitat construction that it represented as the full range of possible management actions — despite being heavily weighted toward one particular solution.

“We call this an unreasonable range of alternatives,” Briscoe says. “They should have presented a solution that offered a middle ground. Even if the flows had more scientific basis, why not create a more middle-ground alternative? Like, let’s build 1,500 — or 1,000 — or 500 acres of sandbar habitat. Why not?

“The best legal arguments are often the most clear,” he continues. “And that’s what we’ve tried to do here. We said, ‘You have inflated the cost of the most environmentally beneficial alternative, and it’s massively different than all of the others. And you simply do not explain why you cannot choose middle-ground alternatives.’” In all, the Corps received approximately 450 comments on the draft EIS via public meetings, mail, and online comment forms.

“Public comments are a crucial element in developing the final EIS and record of decision,” says Major General Scott A. Spellmon, commanding general of the Corps’ Northwestern Division. “We want to know the Missouri River Basin residents’ thoughts and concerns about our preferred alternative. We take all the comments we received seriously and will use them in shaping the final EIS and record of decision.”

Briscoe’s instructors commended him for his approach to the public comment effort. “Tim’s work on the Missouri River Recovery Project required not only extensive legal skills and knowledge, but the willingness and capability to understand many areas of expertise outside of the law entirely,” says Hubertz. “Many law students approach these interdisciplinary problems with the understanding that they are ‘the lawyer’ and that a legal solution is the best, if not the only, solution,” Hubertz says. “Tim had the intelligence to see that the question presented here required an answer that incorporated biology and economics as well as legal reasoning, and had the patience and skill to learn the science and work with his teammate to present the best of all worlds.”

As an environmentalist, Briscoe is less crunchy granola, and more clean-cut and practical. He has kind blue eyes, but his gaze is unflinching. His family has always valued life in public service, with all of its sacrifices: his dad was a police officer in the Chicago area for more than 30 years, and his mom has worked for Big Brothers Big Sisters of America for two decades.

“The important part of useful environmental advocacy is that you need to have good arguments!” Briscoe laughs. “Abstract philosophical arguments are not the types of things that resonate in the legal world.” He continues, “I call myself an environmentalist, and I do share the philosophy behind it. But given my legal training, I know that a judge doesn’t want to hear about how much I love the river. They want to hear about how the law was broken, and whether the agency did something that is actionable or in violation of law.”

Now Briscoe is set on litigation as a career path, having snagged a desirable position as an associate in the environmental law practice group with Thompson Coburn, one of the top law firms in St. Louis. “It involves a lot of work, but it’s rewarding work,” Briscoe says. “I’m practicing the type of law that I have been preparing to do for years — all of college, and all of law school. So it’s worked out great.”

At press time, the jury was still out for the pallid sturgeon and its feathered friends. As a result of his and other public comments, Briscoe hopes that the Corps will reformulate its recovery alternatives to present additional middle-ground options, and that they will focus less on economic impacts to stakeholders. Briscoe recognizes the enormousness of the Missouri River management challenges, and the subtlety required to get to a solution that the affected parties can support, his instructors say today. And he’s done it all with a smile.

“In his three years here, Tim seized every possible opportunity to develop both personally and professionally,” says Maxine Lipeles, the director of the IEC. “He embodies the perfect balance between taking his work with utmost seriousness while always having a quick smile and genuine warmth for everyone around him. I look forward to following his legal career, and am confident he’ll be a wonderful ambassador for WashU.”

For Briscoe, his experience managing the flow of a challenging law degree program while targeting his energy and skills in support of water, environment, and sustainability causes has led him to the career opportunity he always wanted. “I’ve kept my interest in policy and economics,” Briscoe says. His words slow down as he thinks about how to phrase it best. “Law is a unique — and potent — tool to influence the direction of policy, and to check various forms of power, both public and private. And it’s very exciting.” TEF

A freshly fledged lawyer, Tim Briscoe has already gotten his feet wet in ecological policy. He has become a champion for riparian species in the complicated legal environment governing the Missouri River and its human and wildlife dependents.